1997 P Cr (PLP)

MAMOON KAZI, J.

We propose to dispose of these four appeals by this common judgment. The appellants in these cases have been found guilty of commission of offences under sections 399 and 402, P.P.C. and section 13-D of the Arms Ordinance and each one of them has been convicted accordingly. Each of the appellants has been sentenced to suffer seven years' R.I. and to pay a fine of Rs.5,000 and in default of the payment of the fine, to suffer further R.I. for one year for offence committed under section 399/402, P.P.C. The appellants have also been sentenced to four years' R.I. and each one of them to pay a fine of Rs.5,000 and in default to suffer further R.I. for six months for the remaining offence. The appellants have filed their appeals in respect of the said conviction -and the sentences. The facts of the case, briefly, are that on 12th July, 1992 at about 12-30 a.m. the three appellants alongwith the absconding co-accused, Shaheen Akhtar alias Najam and-Faheem were found to be armed with klashnikov assault rifles and sitting at Thalla of one Jalees situated in Mominabad, Karachi. It was alleged that the said appellants were making preparation for committing a dacoity and had thus committed offence punishable under section 399/402 read with section 34, P.P.C. The above allegations were denied by the appellants, according to whom, each one of them had been picked up from his house on the 7th July, 1992 by the S.H.O. of Police Station Mominabad at about R-30 p.m. He was then blind-folded and taken to an unknown place. Thereafter, he was brought to the police station where the said weapon was foisted on him. According to each of the appellants, he was an active member of M.Q.M., a political party, and therefore, he had been falsely implicated in the said case. The appellants also examined seven witnesses in their defence. D.Ws. Muhammad Tayyab Hussain, Syed Muhammad Salam, Azam Ali and Muhammad Yaqoob who were all residing in the neighbourhood of the appellants fully supported the latter on the point viz., that they had been picked up from their respective houses by the police on the 7th July, 1992. D.Ws. Muhammad Azeem and Muhammad Azam who had their respective places of business in the close vicinity of Jalees's Thalla deposed that they had not witnessed any such incident taking place on 12-7-1992. The prosecution in support of its case has examined two witnesses. P.W.1 Akbar Khan was present in his house at about 12-30 a.m. on 12-7-1992 when he was called by a Police Officer who was sitting in a mobile police van alongwith other Police officers and some Army Officers. He was then taken to Jalees's Thalla in Mominabad where he saw the three appellants and their two accomplices, armed with klashnikov assault rifles. Thereafter, the three appellants were apprehended by the police but their co-accused made good their escape. Appellant Jalees was also found to be in possession of 20 rounds whereas co-accused Naushad and Khursheed were found to be in possession of 15 and 11 rounds respectively which were loaded in magazines, besides the said weapons. All the appellants failed to produce any licence for the said arms when demanded by the police. Thereafter, Mashirnama Exh.4 was prepared at the spot, which was also signed by Mashirs. One Hassan Shah was made the second Mashir in the case. He had been picked up by the police from near the place of Wardat. When cross-examined the witness could not say with certainty whether there were people present at the spot from where the appellants had been apprehended by the police. However, according to the witness, the possibility' of many people being present at the spot could not be ruled out as it was a hot night when the incident had occurred. The witness further stated that the distance between his house and the Wardat was covered by the mobile police van in about five minutes. During his further cross-examination the witness also admitted that the case property had not been sealed before him by the police. He was also unable to identify the case property as accordingly to him he was an illiterate person and there were no marks of identity on the case property. The witness was also not certain as to which of the weapons had been recovered from each of the appellants. The evidence of P.W. Akbar Khan has been further supported by S.I.P. Malik Muhammad Nawaz who was then posted as S.H.O. at Police Station Mominabad. According to him, after receiving information in respect of the appellants he collected two Mashirs namely P.W. Akbar Khan and Hassan Shah and proceeded to the Wardat. He then saw the three appellants as well as their co-accused armed with klashnikov assault rifles, which were loaded with magazines containing many rounds. However, only the appellants were apprehended whereas their co-accused absconded from the Wardat. The witness then prepared Mashirnama in presence of the said Mashirs. Although, according to the witness, the appellants and their co-accused were also earlier involved in commission of a similar offence and in support of the same, copies of F.I.Rs. as well as challans allegedly submitted in the said cases were also produced before the trial Court but it then transpired that in none of them the appellants had been named as accused, albeit the names of their co-accused did transpire in the said documents. However, the nature of offence allegedly committed by them was not the same. After going through the record of the case and hearing Mr. Iqtidar Ali Hashmi, learned counsel for the appellants and Mr. Sarwar Khan, learned A.A.-G. we are of the view that the prosecution has failed to prove its case beyond a reasonable doubt. First of all even assuming that the appellants were found in possession of the klashnikov assault rifles loaded with rounds, the same cannot necessarily lead to an inference that the appellants were making preparation for commission of dacoity. In order to bring home the charge to the appellants, it was imperative for the prosecution to establish its case through clear evidence. However, no evidence whatsoever appears to have been produced by the prosecution on this point. Even learned A.A.-G. concedes that the charge under section 399/402, P.P.C. has not been established against any of the appellants. We, therefore, find no justification for conviction of the appellants on the said charge. So far as the remaining charge in regard to section 13-D of the Arms Ordinance is concerned, it may be pointed out that, as per the admission of P.W. Akbar Khan, who can be said to be the only independent witness examined by the prosecution in the case, the possibility of presence of many people at the Wardat could not be ruled out as it was a hot night when the alleged incident had occurred. However, the police found it necessary to pick up P.W. Akbar Khan from his house to act as a Mashir in this case. As per his own admission it took five minutes by the Mobile Police van to cover the distance between the place of the incident and the house of the witness. Therefore, according to a most conservative estimate, it can safely be assumed that the distance between the house of the said Mashir and the Wardat was at least five miles. We fail to understand the necessity of taking a witness from such a distance, when a witness could be available at the place of incident. No doubt, there is evidence of P.W.2, which has been corroborated to a great extent by P.W.1, but when an independent witness within the close vicinity of the Wardat could be procured, the failure of the police to avail services of such witness renders the prosecution case doubtful. Besides this, the evidence of P.W.1 further indicates that the property allegedly recovered from the appellants was not sealed by the police in presence of the said witness. The witness was also unable to identify the weapon and he could not say with certainty as to which of them had been secured from each of the appellants. These admissions), in our view, throw a pall of doubt on the entire prosecution case. The learned A.A.-G. has referred to section 8 of Suppression of Terrorist Activities (Special Courts) Act, 1975 which shifts the burden of proof to the accused in case of a scheduled offence once he is found to be in possession of an incriminating article. However, section 8 can hardly be called in aid unless the accused is shown to have been found in possession of such article. In the present case the very question of the accused being found in possession of the alleged weapons is to doubt. Consequently, unless the factum of possession is established beyond any doubt, section 8 of the said Act can hardly be invoked by the prosecution. We are, therefore, of the clear view that the prosecution has failed to prove its case against the appellants beyond any shadow of doubt. Mr. I.A. Hashmi has further pointed out that although evidence was recorded by the learned trial Court in the main case where the appellants have been charged under section 399/402, P.P.C., but no separate evidence was recorded in the rest of the cases where the appellants have been charged under section 13-D of the Arms Ordinance. Although, the learned A.A.-G. has argued that since no objection was raised by the appellants at the time of the trial, the irregularity, if any, committed by the learned trial Court is curable under section 537, Cr.P.C. We are, however, of the view that this is a serious irregularity committed by the learned trial Court which has resulted in prejudice to the app611ants. No doubt, under such circumstances the consequences that must follow would be to order retrial of the case by the learned trial Court, but since we have already held that the case of the prosecution against the accused has not been fully established, in our opinion, the appellants are entitled to an acquittal. In the result, we accept these appeals and set aside the conviction and the sentences awarded to the appellants and acquit them. The appellants shall, therefore, be released forthwith unless they are required in connection with any other case. N.H.Q./M-2116/K Appeals accepted.